648 F.2d 833 (3rd Cir. 1981), 80-1659, Seese v. Volkswagenwerk A. G.

Docket Nº:80-1659.
Citation:648 F.2d 833
Party Name:Barry Lynn SEESE, Reinaldo Irizarry, Jr., Martin Ramos and Marcos Torres, Administrator for the Estate of Jose Torres, deceased, Appellees, v. VOLKSWAGENWERK A. G., a West German corporation and Volkswagen of America, Inc., a New Jersey corporation, Appellants.
Case Date:April 27, 1981
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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648 F.2d 833 (3rd Cir. 1981)

Barry Lynn SEESE, Reinaldo Irizarry, Jr., Martin Ramos and

Marcos Torres, Administrator for the Estate of

Jose Torres, deceased, Appellees,


VOLKSWAGENWERK A. G., a West German corporation and

Volkswagen of America, Inc., a New Jersey

corporation, Appellants.

No. 80-1659.

United States Court of Appeals, Third Circuit

April 27, 1981

Argued Dec. 1, 1980.

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[Copyrighted Material Omitted]

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John T. Dolan (argued), Crummy, Del Deo, Dolan & Purcell, Newark, N. J., for appellants.

Harold Ungar (argued), John J. Buckley, Jr., Williams & Connolly, Washington, D. C., Henry H. Wallace, Wallace, Chapas & Gravina, Pittsburgh, Pa., for appellees.

Before ADAMS, GARTH and SLOVITER, Circuit Judges.


GARTH, Circuit Judge.

This products liability action stems from a single car "roll-over" accident of a Volkswagen van. The plaintiffs sought to recover on causes of action sounding in strict liability, breach of warranty and failure to design a crashworthy vehicle. The case went forward on strict liability and "crashworthiness" theories. The jury awarded damages to the plaintiffs after finding that the vehicle's "ball cage" was defectively, although not negligently, manufactured and that the van's glass retention system was negligently designed, causing the plaintiffs' injuries to be significantly enhanced. Thus, in the district court the plaintiffs succeeded both on their strict liability and crashworthiness theories. The vehicle's driver was found to be free of negligence.

Although we affirm the jury's verdict, we do so only on the basis of plaintiffs' crashworthiness theory, as we do not read North Carolina law to provide a cause of action grounded on strict liability. 1


On July 18, 1975, on a North Carolina highway, a single vehicle accident occurred involving a 1974 Volkswagen Van (Microbus Type II). Passenger Torres was killed. Ramos, who was driving the van, and passengers

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Seese and Irizarry were severely injured. Passenger Maldonado, the only occupant of the vehicle who was not ejected from the van, was only slightly injured. In the suit that was filed by Seese, Irizarry, Ramos and the representative of Torres, it was alleged that one Thomas J. Weir had forced Ramos off the road onto the shoulder of the highway. When Ramos attempted to steer the van back on to the road, the van overturned. All but one of the occupants of the Volkswagen were ejected from the van through the windows which "popped out." The plaintiffs' diversity action named Volkswagen of America and Volkswagen, A.G. ("VW") in addition to Weir as defendants. 2

On appeal, VW argues that the district court erred in allowing the case to proceed on strict liability and crashworthiness theories and that significant trial errors require the granting of a new trial. Of the alleged errors asserted, VW stresses the exclusion of certain evidence by the district court concerning the non-use of seat belts by the plaintiffs and the district court's rulings that the requirements for proof of damages set out in Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976) were met by the plaintiffs. Additional errors claimed by VW include the admissibility of evidence introduced from the Fatal Accident Reporting System (FARS) and the relevance of a Federal Motor Vehicle Safety Standard. Finally, VW argues that the use of alternate jurors after deliberations had begun, gave the defendants a right to a new trial because of the technical violation of Federal Rule of Civil Procedure 47(b), which provides that alternate jurors shall be discharged after the jury retires to consider its verdict.


Section 402A of the Restatement of Torts, Second makes the seller or manufacturer of any product that is in a defective condition which is unreasonably dangerous 3 to the user or consumer or to his property, subject to liability for physical harm caused thereby, if the seller is engaged in the business of selling the product and the product reaches the user without substantial change. The rule applies even when the seller has used all possible care in preparing and selling the product and although there is no privity of contract between consumer and seller.

In 1965, the Restatement of Torts, Second was promulgated and from that time until the district court's decision in this case, forty-five states adopted the principle of strict liability in substantially the form described in § 402A of the Restatement. Moreover, during that period, no state Supreme Court ever rejected the strict liability theory.

With that circumstance as a backdrop, the district court ruled that the plaintiffs could assert the doctrine of strict liability in tort because it predicted that the North Carolina Supreme Court would adopt that doctrine when it was presented with that issue. Although North Carolina intermediate courts 4 had refused to accept the theory of strict liability in tort, the district court observed that in recent years the North Carolina Supreme Court had not precluded the use of that doctrine.

At the time of the district court's ruling, which predicted the adoption of strict liability by North Carolina, more than fifteen years had elapsed since the North Carolina Supreme Court decided Wilson v. Lowe's Asheboro Hardware, Inc., 259 N.C. 660, 131

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S.E.2d 501 (1963). Wilson held that in North Carolina the obligation of a manufacturer to the consumer was governed by the law of negligence, not by any concept of strict liability. Against this background, the district court predicted that if the North Carolina Supreme Court were faced with the questions of whether it should apply a strict liability theory, it would reject its prior Wilson decision, and would follow the lead of the vast majority of states and would adopt § 402A as North Carolina law.

The district court, in reaching its conclusion, relied on National Surety Corp. v. Midland Bank, 551 F.2d 21 (3d Cir. 1977) which held that a federal district court, while it may not ignore the decision of an intermediate (state) appellate court, is free to reach a contrary result if by analyzing "other persuasive data; (it) predict(s) that the (North Carolina Supreme Court) would hold otherwise." Id. at 30. It did so without recognizing that here, the Supreme Court of North Carolina had already spoken to this issue (in Wilson), whereas in National Surety Corp. there had been no New Jersey Supreme Court decision which had dealt with the question that was in controversy there.

It was only after the district court's decision in this case, but during the pendency of this appeal, that the North Carolina Supreme Court in Smith v. Fiber Control Corp., 300 N.C. 669, 268 S.E.2d 504 (1980), refused to adopt the principle of strict liability in tort. In Smith, a personal injury action had been brought against the manufacturer of a machine which was responsible for injuring an employee who was working in a textile mill. The issue deemed dispositive by the Supreme Court of North Carolina was "whether there was sufficient evidence to carry the case to the jury on the question of contributory negligence." Id. at 507. In concluding that contributory negligence was properly submitted to the jury, the Court specifically addressed the issue of strict liability in product liability actions. Because the North Carolina Supreme Court's statement in this respect answers the arguments urged upon us by Seese, we quote this portion of Smith in full:

Finally, plaintiff and amicus curiae urge this Court to adopt the doctrine of strict liability in product liability actions. In response to this request, we note that recent comprehensive legislation in this area by the General Assembly does not adopt strict liability in product liability cases. See G.S. 99B-1, et seq. (the 1979 Products Liability Act). Significantly, the Products Liability Act specifically reaffirms the applicability of contributory negligence as a defense in product liability actions. G.S. 99B-4(3). Suffice it to say, that given the recent legislative activity in this area, we are not presently inclined to consider adoption of the rule of strict liability in product liability cases.

268 S.E.2d at 509-10.

Seese, on appeal, attempts to distinguish the clear impact of Smith. He argues that in Smith the Court was only asked to consider the preclusion of a defense of contributory negligence and was not asked to consider whether a rule of strict liability should be established. He also argues that the Smith court eschewed adoption of strict liability because the North Carolina legislation which was enacted, and to which the Court referred, utilized an implied warranty theory which can be equated with strict liability in some respects. 5

However, as the opinion of the North Carolina Supreme Court which we quote above clearly indicates, that court did consider whether or not to adopt the rule of strict liability, and it refused to do so. Significantly, the Court also refused to preclude a contributory negligence defense, a

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defense which is normally unavailable to a defendant in a strict liability action. 6

We also conclude that Seese's second argument, which seeks to equate strict liability with implied warranty in interpreting North Carolina's Products Liability Act, is without merit. Under West v. American Telephone and Telegraph Co., 311 U.S. 223, 236-37, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940), a federal court must bow to the interpretation of the highest court of a state as "the final arbitor of what is state law." Here, the North Carolina Supreme Court has interpreted its own state statute in rejecting the theory of strict liability.

Moreover, even if the statute could be construed as...

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